Who controls the land and minerals in the former Bantustans of South Africa - chiefs, the state or landholders? Disputes are taking place around the ownership of resources, decisions about their ...exploitation and who should benefit. With respect to all of these issues, the courts have become increasingly important. The contributors to Land, Law and Chiefs in Rural South Africa capture some of these intense contestations over land, law and political authority, focussing on threats to the rights of ordinary people. History and customary law feature strongly in most disputes and succession to chieftaincy is also frequently disputed. Judges have to make decisions in a context where rival claimants to property or office assert their own versions of history and custom. The South African constitution recognises customary law and the courts are attempting to incorporate and develop this branch of jurisprudence as 'living customary law'. Lawyers, community leaders and academics are called on to assist in researching cases around restitution, land rights and customary law. The chapters in this collection discuss legal cases and policy directions that have evolved since 1994. Some chapters analyse the increasing power of chiefs in the South African rural areas, while others suggest that the courts are giving support to popular rights over land and supporting local democratic processes. Contributors record significant pushback from groups that reject traditional authority. These political tensions are a central theme of the collection and thus serve as vital case studies in furthering our understanding of rights and restitution in South Africa. Who controls the land and minerals in the former Bantustans of South Africa - chiefs, the state or landholders? Disputes are taking place around the ownership of resources, decisions about their exploitation and who should benefit. With respect to all of these issues, the courts have become increasingly important. The contributors to Land, Law and Chiefs in Rural South Africa capture some of these intense contestations over land, law and political authority, focussing on threats to the rights of ordinary people. Judges have to make decisions in a context where rival claimants to property or office assert their own versions of history and custom. The South African constitution recognises customary law and the courts are attempting to incorporate and develop this branch of jurisprudence as 'living customary law'. Lawyers, community leaders and academics are called on to assist in researching cases around restitution, land rights and customary law. The chapters in this collection discuss legal cases and policy directions that have evolved since 1994. Some analyse the increasing power of chiefs in the South African rural areas. Others suggest that the courts are giving support to popular rights over land and supporting local democratic processes. These political tensions are a central theme of the collection.
Customary law and traditional leadership in South Africa derive their force and authority from the Constitution and are subject to the Constitution. I The Constitutional Court's adoption and ...development of the concept of 'living Customary law' is radical in its conception and in its Consequences for equality and democratisation. It is now established that customary law evolves and develops to meet the changing needs of the communities in which it is embedded. Evidence of contemporary local practice is therefor a central element in determining the specific content of customary law. The customary-law rules accepted and enforced during the era of colonialism and apartheid may have been inappropriate, outdated, ossified or simply wrong. Textbooks and earlier judgments are therefore not automatically to be accepted as binding precedent: they are to be looked at critically. The customary law is looked at not in the abstract but in relation to its consequences — for example, inequality. And there may be a divergence between Statutory traditional leadersh- and Customary traditional leadership. All of this represents a radical constitutional project.
Tribute to Arthur Chaskalson Budlender, Geoff
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Journal Article
Recenzirano
We are here, all of us, because we are blessed to have had Arthur Chaskalsonin our lives. I have been given the privilege of saying something about how he touched and continues to touch our lives.
The topic of my lecture is 'People's Power and the Courts'. In the mode of all good preachers, I start with a text. In fact I have three : The Freedom Charter proclaims: 'The People Shall Govern!' ...President Zuma, in his recent address in the National Assembly bidding farewell to Chief Justice Ngcobo and welcoming Chief Justice Mogoeng, said: 'The powers conferred on the courts cannot be regarded as superior to the powers resulting from a mandate given by the people in a popular vote'. The Constitution says that one of the founding values of the Republic of South Africa is 'a multi-party system of democratic government, to ensure accountability, responsiveness and openness'.
In the Hyundai case (2000),¹ Chief Justice Langa said that the Constitution is located in the historical transition from a society based on injustice and exclusion from the democratic process, to one ...that respects the dignity of all citizens and includes all in the process of government.² The concept of transition captures two elements of the legal change brought about by the interim Constitution, which came into operation in 1994, and the ‘final’ Constitution of 1996. On the one hand, this was not a process of revolutionary change: the interim Constitution was adopted by the apartheid parliament, and there was
Book Reviews Ellmann, Stephen; Budlender, Geoff; Williams, Vincent ...
South African Journal on Human Rights,
01/1999, Letnik:
15, Številka:
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Book Review
